Last year, the Bivouac Swine Farm owners thought that by now, they would be wrapping up construction on their barns by a wooded stream in south-central Pennsylvania, and preparing to house 8,700 pigs in a new breeding facility.

Instead, the 224-acre operation near McConnellsburg is on hold, after neighboring residents and environmental activists concerned it would harm local water quality won a rare legal victory blocking it. An appeals board judge ruled last year that state regulators had failed to properly vet the farm’s plans for preventing pig waste from entering Big Cove Creek, a state-designated coldwater fishing stream that ultimately drains into the Potomac River.

The dispute may be about to resume, as a representative of Country View Family Farms, the parent company for the swine operation, said it planned to reapply in June to the Department of Environmental Protection for approval of its stormwater management plan for the site. Residents say they’re girding to oppose it again.

“I’ve lived here for more than 30 years,” neighbor Marjorie Hudson said. “My family is from here. I’m related to almost everyone in the county. I don’t think this is the right thing in the right place.”

From the time the companies proposed the hog farm in 2014, neighbors and environmental groups have voiced water pollution concerns to local and state officials. The facility, which would produce 11 million gallons of waste and use 7 million gallons of water a year, sits directly up a hill from Big Cove Creek. But the applicants — part of the Clemens Family Corp. based in Hatfield, PA — which markets its pork under the brand Hatfield Quality Meats, had been granted their local operating permit as well as a half dozen from the Pennsylvania DEP.

The applicants proposed capturing storm runoff in three bioretention basins they would build at the back of the site, then allowing the water to soak into the soil. Because the site’s soil is clay and poor at infiltrating, the applicants proposed to replace it with shale soils, but the top layer would still be impermeable clay. The basins would start discharging once they fill with 15 inches of water, though it is not clear where the discharged water will go. The basins are supposed to absorb two inches of rain into the ground per hour, though the applicant stated that was just an assumption and hadn’t been tested. The DEP accepted the application, even though shale soils vary widely and the ones proposed hadn’t been tested.

Opponents appealed to the Environmental Hearing Board, which reviews cases concerning state-issued permits. The board usually upholds DEP decisions, according to those who follow it, but after hearing four days of testimony and visiting the farm site, Judge Bernard A. Labuskes ruled in favor of the citizens. He concluded that DEP permit reviewers had failed to follow their own requirements for stormwater management and groundwater infiltration. Specifically, Labuskes said, the company did not do the tests to prove it could control its runoff, and the DEP seemed disinclined to require them to do so.

Labuskes noted that CFC Fulton, the limited liability corporation Country View Family Farms set up to run the swine operation, had “literally no appropriate data” to show it could protect water quality downstream. One of the few tests it did do on a bioretention basin at the front of the site produced results as high as 982 inches of water per hour percolating into the soil, which the judge likened to “basically pouring water down a crack.”

He added: “In the absence of data, the Department has basically approved an experiment.” He said this practice “turns the scientific method on its head. It is like testing a bridge after it is mostly built…We are trying to imagine why the Department would not insist on appropriate pre-
development testing to verify that a proposed infiltration system will work.”

Further, Labuskes added, a DEP engineer testified that CFC Fulton’s infiltration methods were unorthodox, used in only three cases out of the 190 permits he had reviewed. That, Labuskes said, seemed to bolster the case for rigorous testing and following the department’s rules.

“We understand why CFC would want to explain its deviation from the guidance manuals, but it was strange to watch the Department pooh-pooh its own manuals repeatedly,” Labuskes said.

The law, he added, required the DEP to consider the overall environmental impact of the project, instead of the piecemeal, permit-by-permit approach that CFC favored, which Labuskes compared to “a blind man feeling the trunk of an elephant who thinks he has found a snake.”

Bill Fink, environmental specialist for Country View Family Farms and CFC, said he was “very surprised” that the judge ruled against his company and the DEP. Fink, who drafted the site’s nutrient management plan, said the plan is not unusual and Country View has several facilities like it about 20 miles away. In those cases, Fink said, the company has faced little opposition.

Fink said that Country View plans to use 12 acres for the hogs; the remaining acres will be in row crops and look as it has for decades. He called the site an “ideal location” because of its proximity to other Country View contract farm operations and row-crop farms that could accept the manure.

The plan now, he said, is to resubmit an amended application to the DEP in June that will address stormwater and groundwater and include more soil testing. “Our full intention is to continue moving forward with the project,” he said.

Brent Walls, riverkeeper for the Upper Potomac, called the judge’s decision “precedent-setting” and could open the door to future victories for residents who do not want concentrated animal feeding operations near sensitive streams. He agrees with Hudson that the location, the top of a knoll with streams on both sides, is “absolutely not the right place” for a hog-breeding facility. Walls, who works with attorneys to fight industrial pollution in three states, said he’s concerned about the waste from the hogs. While it would be transferred to other sites, he said, it would still have to be pumped out on a regular basis.

The farm was a vacation retreat for a family, Hudson said. They donated the land to the Jewish Federation of Greater Washington, which sold it for $700,000 to MWM LLC of Myerstown, PA on May 5, 2014. Nine days later, MWM LLC sold the property to CFC Fulton. In the years since the sale, neighbors have erected signs criticizing the state for supporting the farm, and warning of the coming threats to the community’s natural resources.

On a recent visit, the air crisp and the sun spotlighting striations in the boulders along McConnellsburg’s winding country roads, Mike Kline and his wife, Karen, were trying their luck fly-fishing in Esther Run, a tributary of Big Cove Creek. They live nearby in Crystal Springs and are concerned about the hog farm.

“One spill into the stream will destroy the biology,” said Mike, a logistics analyst in nearby Oshkosh. “It only takes one accident.”

Added Karen, a schoolteacher, as she cast: “We want to keep it like this. Can you blame us?”